shall be considered simply in its general relations and apart from its particular use. See Illinois C. R. Co. v. Decatur, 147 U. S. 190, 37 L. ed. 132, 13 Sup. Ct. Rep. 293. On the question of benefits the present use is simply a prognostic, and the plea of prophecy. If an occupant could not escape by professing his desire for solitude and silence, the legislature may make a similar desire fortified by structures equally ineffective. It may say that it is enough that the land could be turned to purposes for which the paving would increase its value. Indeed, it is apparent that the prophecy in the answer cannot be regarded as absolute, even while the present use of the land continues; for no one can say that changes might not make a station desirable at this point; in which case the advantages of a paved street could not be denied. We are not called on to say that we think the assessment fair. But we are compelled to declare that it does not go beyond the bounds set by the 14th Amendment of the Constitution of the United States. Judgment affirmed. Mr. Justice Harlan, not having been present at the argument, took no part in the decision. See same case below, 140 Cal. 440, 98 Am. St. Rep. 63, 73 Pac. 1083, 74 Pac. 444. Statement by Mr. Justice Brewer: This was an action in the superior court of Fresno county, California, to quiet title to certain lands in that county. The complaint by Miller and the Home Oil Company was filed October 14, 1898. The case was tried by the court without a jury, findings of fact were made, and a decree entered in favor of the plaintiffs. On appeal to the supreme court of the state this decree was affirmed, September 13, 1903. 140 Cal. 440, 98 Am. St. Rep. 63, 73 Pac. 1083, 74 Pac. 444. Thereafter the case was brought to this court on writ of error. The dispute between the parties was as to the validity of respective locations of the land under the mineral laws of the United States. The mineral found therein, and on account of which the locations were made, was petroleum. From the findings it appears that on June 14, 1895, eight persons, one Barieau being of the number, attempted to make a mineral location upon the tract in controversy, the same being an entire quarter section. Whatever interest they thus acquired was, on December 24, 1896, conveyed to E. O. Miller. On December 31, 1896, Miller by his written declaration abandoned Mr. Justice White and Mr. Justice and relinquished all. rights which he had Peckham dissent. (197 U. S. 313) acquired by this conveyance. On the same day and about four hours thereafter Miller and seven others, duly qualified to make A. Y. CHRISMAN and H. T. Chrisman. entries, made a mineral location of the en Plffs. in Err., v. E. O. MILLER and the Home Oil Company. tire tract. Subsequently all interests obtained thereby were vested in the plaintiffs. On January 1, 1897, the defendants at tempted to make a location of certain portions of the tract. The tenth, eleventh, fifError to state court-conclusiveness of find-teenth, seventeenth and eighteenth findings ings of fact-mining claims-discovery. 1. Findings of fact are conclusive on the Supreme Court of the United States in cases coming up from a state court.* Even as between rival mineral claimants to petroleum lands, there must have been such a discovery, in order to sustain a location, as would justify a prudent person in the expenditure of money and labor in exploitation for petroleum. [No. 171.] Argued March 8, 1905. 1905. IN are as follows: "10. That immediately after going into possession of said northeast quarter of said section 20, the said plaintiff, Home Oil Company, commenced digging, boring, and excavating thereon for petroleum and other fluid products, and has expended in such work the sum of more than $30,000, and by means of such digging, boring, and excavating discovered large quantities of petroleum therein; and there now exists, and did at the commencement of this action, wells of great depth, sunk and excavated upon said Decided April 3, property by said Home Oil Company, from which there is a daily flow of large quantities of petroleum of great value. 'N ERROR to the Supreme Court of the State of California to review a judgment which affirmed a judgment of the Superior Court of Fresno County in that state in favor of plaintiffs in an action to quiet title to mineral lands. Affirmed. "11. That ever since the 17th day of September, 1897, the said plaintiff, Home Oil Company, has been and is now in the sole and exclusive possession of all of said real property, and engaged in working, developing, and mining the same, and extracting *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1090. petroleum and other fluid products therefrom. "15. That said defendant A. Y. Chrisman never at any time discovered a seepage of petroleum or other mineral oil upon said land or any part thereof, and the defendant H. T. Chrisman never discovered a seepage of petroleum or other mineral oil upon said land or upon any part thereof, and that the only discovery of petroleum or any other fluid produce upon said lands or upon any part thereof is the discovery made by the plaintiff Home Oil Company as in these findings before stated. "17. That on the said 1st day of January, 1897, no part of the said northeast quarter of section 20 was vacant public mineral land or open to exploration or location for mining purposes, but, on the contrary, the whole of said northeast quarter of said section 20 was then in the possession of J. A. Hannah, E. O. Miller, W. F. Hall, D. G. Overall, L. E. Hall, Harry Levinson, R. B. Biddle, and Charles H. Smith, under and by virtue of their location of said land hereinbefore mentioned. "18. That the said defendants, A. Y. Chrisman and H. T. Chrisman, did not make the location for mining purposes hereinbefore mentioned in good faith, and did not, nor did either of them, enter into the possession thereof or any part of the same for the purpose of working and mining thereon on the 1st day of January, 1897, or upon any other date; and said defendants have not and neither of them has since the 1st day of January, 1897, or since any day whatever, done and performed upon said land or any part thereof such work and labor or made improvements thereon as is required by the laws of the United States or of the state of California; and that the said defendants have not been and neither of them has been in the exclusive possession of said tracts of land so claimed by them; and said defendants are not, and neither of them is, in the possession of said tracts of land so claimed by them or either of them, or any part thereof; and the said defendants ever since the said 1st day of January, 1897, or since any day whatever or at all have not been nor are they or either of them now entitled to the exclu sive or any possession of the tracts of land claimed by them or any part thereof, nor are said defendants entitled, nor is either of them entitled, to the exclusive or any possession whatever of any part of said northeast quarter of said section 20, in township 19 south, range 15 east, Mt. Diablo base and meridian." Messrs. William H. Metson, Joseph C. Campbell, Frank C. Drew, and Philip Mansfield for plaintiffs in error. Mr. L. L. Cory for defendants in error. Mr. Justice Brewer delivered the opinion of the court: In cases coming from a state court we do not review questions of fact, but accept the conclusions of the state tribunals as final. 194 U. S. 220, 48 L. ed. 944, 24 Sup. Ct. Rep. Clipper Min. Co. v. Eli Min. & Land Co. 632, and cases cited in the opinion; Kauf man v. Tredway, 195 U. S. 271, ante, p. 33, 25 Sup. Ct. Rep. 33; Smiley v. Kansas, 196 U. S. 447, ante, p. 289, 25 Sup. Ct. Rep. 289. By the findings of the trial court the Chrismans, plaintiffs in error, never made any discovery of petroleum or other mineral oil, did not make the attempted location in good faith, and never did any work on the tract. These findings were of date June 24, 1899, nearly two years and a half after their attempted location. It would seem from these facts that they had no pretense of right to the premises. It is contended, however, that the supreme court, in its opinion, practically set aside these findings in one respect, and that is the discovery of petroleum. We do not so understand that opinion. The only reference made to the matter is in these words: "The alleged discovery of defendants under their location may be disposed of in a single sentence. It amounted to no more than the pretended discovery by Barieau;" and in reference to Barieau's alleged discovery the court said: "Upon the question of discovery the sole evidence is that of Barieau himself. Giving fullest weight to that testimony, it amounts to no more than this, that Barieau had walked over the land at the time he posted his notice, and had discovered 'indications' of petroleum. Specifically, he says that he saw a spring, and 'the oil comes out and floats over the water in the summer time, when it is hot. In June, 1895, there was a little water with oil and a little oil with water coming out. It was dripping over a rock about 2 feet high. There was no pool; it was just dripping a little water discovery' which it is even pretended was and oil, not much water.' This is all the made under the Barieau location." There is nothing in this language from which it can be inferred that the supreme court of the state set aside the finding of the trial court. All that it said was in answer to the contention of the defendants that they had made a discovery, and that contention the supreme court repudiated, leaving the finding of fact to stand as it was made by the trial court. It is further contended that the location | patents, we said (p. 683, L. ed. p. 575, Sup. made by Barieau and his associates, and Ct. Rep. p. 199): conveyed by them to Miller, did not lapse "It appears very clearly from the evidence until midnight of December 31, 1896; that that no lodes or veins were discovered by then it lapsed by reason of the failure to the excavations of Sawyer in his prospectdo the annual work required by statute; ing work, and that his lode locations were that Miller could not prior thereto aban-made upon an erroneous opinion, and not don and relinquish that location, and at the same time make a new one, as he attempted to do on the afternoon of December 31, because the effect of such action would be to continue a possessory right to the tracts without compliance with the statutory requirement of work. Hence, as contended, the only valid location was that made on January 1, 1897, by the defendants. It may be doubted whether, in view of their want of good faith, the defendant's can avail themselves of their contention, and, indeed, also doubted whether they could uphold their location by proof of a discovery by some other party. But it has no foundation in fact, for, as found by the trial and held by the supreme court of the state, the attempted location by Barieau and his associates in June, 1895, was a failure by reason of a lack of discovery. We have already quoted the declaration of the supreme court. The testimony referred to in that quotation, even if true, does not overthrow the finding. It does not establish a discovery. It only suggests a possibility of mineral of sufficient amount and value to justify further exploration. By 29 Stat. at L. p. 526, chap. 216, U. S. Comp. Stat. 1901, p. 1434, "lands containing petroleum or other mineral oils, and chiefly valuable therefor," may be entered and patented "under the provisions of the laws relating to placer mineral claims." By § 2329, Rev. Stat. U. S. Comp. Stat. 1901, p. 1432, placer claims are "subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims." By 2320, Rev. Stat. U. S. Comp. Stat. 1901, p. 1424, "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." What is necessary to constitute a discovery of mineral is not prescribed by statute, but there have been frequent judicial declarations in respect thereto. In United States v. Iron Silver Min. Co. 128 U. S. 673, 32 L. ed. 571, 9 Sup. Ct. Rep. 195, a suit brought by the United States to set aside placer patents on the charge that the patented tracts were not placer mining ground, but land containing mineral veins or lodes of great value, as was well known to the patentee on his application for the upon knowledge, that lodes bearing metal were disclosed by them. It is not enough that there may have been some indications, by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold or silver or other metal, to justify their designation as 'known' veins or lodes. To meet that designation the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify the exploitation. Although pits and shafts had been sunk in various places, and what are termed in mining cross-cuts had been run, only loose gold and small nuggets had been found, mingled with earth, sand, and gravel. Lodes and veins in quartz or other rock in place bearing gold or silver or other metal were not disclosed when the application for the patents were made." This definition was accepted as correct in Iron Silver Min. Co. v. Mike & S. Gold & Silver Min. Co. 143 U. S. 394, 36 L. ed. 201, 12 Sup. Ct. Rep. 543, though in that case there was a vigorous dissent upon questions of fact, in which Mr. Justice Field, speaking for the minority, said (p. 412, L. ed. p. 207, Sup. Ct. Rep. p. 548): "The mere indication or presence of gold or silver is not sufficient to establish the existence of a lode. The mineral must exist in such quantities as to justify expenditure of money for the development of the mine and the extraction of the mineral." And again (p. 424, L. ed. p. 211, Sup. Ct. Rep. p. 552): “It is not every vein or lode which may show traces of gold or silver that is exempted from sale or patent of the ground embracing it, but those only which possess these metals in such quantity as to enhance the value of the land and invite the expenditure of time and money for their development. No purpose or policy would be subserved by excepting from sale and patent veins and lodes yielding no remunerative return for labor expended upon them." By the Land Department this rule has been laid down (Castle v. Womble, 19 Land Dec. 455, 457): "Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the Piff. in Err., v. (197 U. S. 453) requirements of the statute have been met. | NEW ORLEANS GASLIGHT COMPANY, To hold otherwise would tend to make of little avail, if not entirely nugatory, that provision of the law whereby 'all valuable mineral deposits in lands belonging to the United States .. are . . . declared to be free and open to exploration and purchase.'" Some cases have held that a mere willingness on the part of the locator to further expend his labor and means was a fair criterion. In respect to this Lindley on Mines, 1st ed. § 336, says: "But it would seem that the question should not be left to the arbitrary will of the locator. Willingness, unless evidenced by actual exploitation, would be a mere mental state which could not be satisfactorily proved. The facts which are within the observation of the discoverer, and which induce him to locate, should be such as would justify a man of ordinary prudence, not necessarily a skilled miner, in the expenditure of his time and money in the development of the property." It is true that, when the controversy is between two mineral claimants, the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between a mineral claimant and one seeking to make an agricultural entry, for the reason that where land is sought to be taken out DRAINAGE COMMISSION OF NEW OR- Contracts-impairment of obligation due process of law-requiring gas company to bear cost of changing mains to suit city drainage system. 1. 2. The imposition on a gas company of the cost of changes in the location of its pipes and mains under the city streets, necessitated by the construction of the municipal drainage system authorized by La. act July 9, 1896, does not impair any contract rights acquired under its exclusive franchise to supply gas to the city and its inhabitants through pipes and mains laid in the city streets. A gas company has no such property right in the location of its pipes and mains laid under an exclusive franchise to supply gas to the city and its inhabitants, as to make the imposition upon it of the cost of changes in the location of such pipes and mains, necessitated by the construction of the municipal drainage system authorized by La. act July 9, 1896, a taking of property with out due compensation. [No. 172.] of the category of agricultural lands the Argued March 8, 9, 1905. Decided April 3, 1905. evidence of its mineral character should be reasonably clear, while in respect to mineralN ERROR to the Supreme Court of the lands, in a controversy between claimants, the question is simply which is entitled to priority. That, it is true, is the case before us. But even in such a case, as shown by the authorities we have cited, there must be such a discovery of mineral as gives reasonable evidence of the fact, either that there is a vein or lode carrying the precious mineral, or, if it be claimed as placer ground, that it is valuable for such mining. Giving full weight to the testimony of Barieau, we should not be justified, even in a case coming from a Federal court, in overthrowing the finding that he made no discovery. There was not enough in what he claims to have seen to have justified a prudent person in the expenditure of money and labor in exploitation for petroleum. It merely suggested a possibility that the ground contained oil sufficient to make it "chiefly valuable therefor." If that be true were the case one coming from a Federal court, a fortiori must it be true when the case comes to us from a state court, whose findings of fact we have so often held to be conclusive. State of Louisiana to review a judgment which on rehearing affirmed the judgment of the Civil District Court of the Parish of Orleans in that state denying the right of a gas company to recover the sums paid out for making the changes in the location of its pipes and mains necessitated by the construction of a municipal drainage system. Affirmed. See same case below, 111 La. 838, 35 So. 929. Statement by Mr. Justice Day: The New Orleans Gaslight & Banking Company was incorporated in 1835, and was given the exclusive privilege of vending gas in the city of New Orleans and its faubourgs and the city of La Fayette, to such persons or bodies corporate as might voluntarily choose to contract for the same; and it was permitted to lay pipes and conduits at its own expense in the public ways and streets of New Orleans, having due regard for the public convenience. In 1845 and 1854 the charter of the company as to its right to engage in banking was withdrawn, and the right to vend gas and use The judgment of the Supreme Court of the streets was continued to the corporation California is affirmed. under the name of the New Orleans Gas that its right to recover for the amount expended by it should not be prejudiced by the arrangement made, but should be sub This action was brought to recover the cost of the changes so made. In the court of original jurisdiction there was a judgment in favor of the drainage commission. Upon appeal the supreme court of Louisiana reversed this judgment. Upon rehearing, the latter judgment was reversed and a final decree rendered, affirming the judgment of the lower court, rejecting the claim of the gas company. 111 La. 838, 35 So. 929. A writ of error to this court brings into review the judgment of the state court has impaired the contract rights of the gas company, and has the effect to take its property without compensation, in derogation of rights secured by the Constitution and the 14th Amendment. light Company until April 1, 1875, when its corporate privileges should end, the company during the continuance of its charter to furnish the Charity Hospital with nec-mitted to the courts for final adjudication. essary gas and fixtures free of charge. By amendments the contract privilege of the company was extended until April 1, 1895, the exclusive privileges granted by the original charter not to extend beyond the time fixed in the act of incorporation. In 1870 another company, under the name of the Crescent City Gaslight Company, was incorporated, its charter providing that the company, its successors, and assigns, should for fifty years from the expiration of the charter of the New Orleans Gaslight Com-that judgment, the contention being that pany have the sole and exclusive privilege of making and supplying gaslight in the city of New Orleans, and for that purpose be allowed to lay pipes and conduits in the streets and alleys of the city where the same may be required, at its own expense, in such manner as to least inconvenience the city and its inhabitants; and the company was also required to afterwards repair, with the least possible delay, the streets it had broken. In 1873 an act of the legislature fixed the date of the expiration of the exclusive franchise of the New Orleans Gaslight Company at April, 1875, and the franchise of the Crescent City Gaslight Company was confirmed from that date for the period of fifty years. On March 29, 1875, On March 29, 1875, the New Orleans Gaslight Company and the Crescent City Gaslight Company were consolidated under the name of the former corporation. This company is the plaintiff in the action in the state court. By an act of the legislature, approved July 9, 1896, the state created a board known as the Mr. Charles F. Buck for plaintiff in Mr. Omer Villeré for defendant in error. Mr. Justice Day delivered the opinion of the court: In the case of the New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252, it was held that the complainant, by reason of the franchises granted and agreements made, as fully set forth in that case, had acquired the exclusive right to supply gas to the city of New Orleans and its inhabitants through pipes and mains laid in the streets. Drainage Commission of New Orleans, which It is the contention of the plaintiff in erboard was given the power to control and ex-ror that, having acquired the franchise and ecute a plan for the drainage of the city of availed itself of the right to locate its pipes. New Orleans, and also the power to appro- under the streets of the city, it has thereby priate property according to the laws of the acquired a property right which cannot be state, by legal proceedings, for the pur- taken from it by a shifting of some of its pose of constructing a drainage system. mains and pipes from their location to acAfter adopting a system of drainage, and commodate the drainage system, without proceeding with the construction thereof, compensation for the cost of such changes. according to the plans, it was found neces- It is not contended that the gas company sary to change the location in some places has acquired such a property right as will in the streets of the city, of the mains prevent the drainage commission, in the exand pipes theretofore laid by the New Or-ercise of the police power granted to it by leans Gaslight Company. The testimony shows that there was nothing to indicate that these changes were made in other than cases of necessity and with as little inter ference as possible with the property of the gas company. By stipulation between the parties it was agreed that the charges should be paid by the gas company when it became necessary to accede to the demands of the drainage commission; the gas com pany should keep an account thereof; and the state, from removing the pipes so as to make room for its work, but it is insisted that this can only be done upon terms of compensation for the cost of removal. This contention requires an examination of the extent and nature of the rights conferred in the grant to the gas company. The exclusive privilege which was sustained by this court in the case of New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co.. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep |